This is an appeal from Fifth Circuit by a young black Selective Service registrant from conviction at least in District of Louisiana, for refusal to be inducted.

I might say, the ability of the Court to this particular registrant when all the way through the system up to the point of where he was asked to be inducted and had said that he was not going to be inducted.

Now, he was in charged by indictment in courts, tried for this offense in federal court and was convicted.

Now, on the -- the thing that happened was that he attempted to defend his defense for the criminal charge, was that black people had been excluded from his Selective Service Board and in the midst of the trial of the case below, we discovered that the chairman of this black person's board was the president of the United Ku Klux Klan of America, Manny Jackhill, and at the same time, we found out in the process of counter case that the defendant had been denied an appeal by his board.

When he tried to tell him that he had a hardship deferment, it turned out that he and his mother with his sole support of himself and six and brothers and sisters, so that when the Fifth Circuit decided this case, it said that the defenses were foreclosed because he had failed to exhaust his administrative remedies below.

But I say to you that that can't possibly be because the boards below, the board in Louisiana, Board number 42 was perfectly incompetent to determine whether or not it was properly composed, whether its board chairman should have been the chairman or whether there should have been the board dissolved because the fact that negroes were excluded from service on the board.

These are constitutional issues which the board has no jurisdiction over and which could not be raised before the board and we'd have to admit be necessarily raised before the Court.

If we follow Judge Thornberry's opinion in the circuit, it would necessarily mean that these serious constitutional issues could never be raised because we know they can't be raised before the board.

The Government in its brief here agrees with us on that point and they cannot then under the Thornberry opinion out of the circuit be raised in the federal court and we know that that is impossible.

If we cannot raise it in federal court, it simply means that this defendant would then go to jail for five years in this case without ever having been able to raise these serious constitutional questions in any court competent jurisdiction.

And I think Mr. Justice Murphy when he wrote the concurring opinion in Esten , put it very well, he said that if at some point, these remedies are not available, well then, what's going to happen is that these people are going to go -- if it violates due process, then I'm just trying to find the citation.

To sustain the conviction of the two petitioners and this was in Esten.

In these cases, we'd require adherence to the proposition that a person may be criminally punished without ever being afforded the opportunity to prove that the prosecution is based on an invalid administrative order.

That violates the most elementary and fundamental concepts of due process of law.

Now, actually, I think that what we're trying to do is raise a constitutional issue.

The fact that negroes were excluded from the Board and the chairman was a clansman, that he was denied of appeal and the fact that these facts were not raised in the board below, in the draft board is absolutely irrelevant.

They wouldn't have anything to do with this classification.

If he had waived a right that related to classification and we were up here talking about classification, that would be one thing.

We're not talking about this man's classification.

We're talking about his constitutional rights to talk about the composition of that draft.

And what would be the effect, I ask the Court, of saying to this particular thing, you can never raise those issues in the Board and you can never raise those issues in this Court.

What would be the effect on the Selective Service System?

Because the Selective Service System itself is based upon the fairness of the system and presumably upon the knowledge by the country that the system operates in a fair manner that it reflects the qualities of life in America, that it reflects the characteristics of the community where the people lived that they have to serve, that they are drafted by their friends and neighbors and here we find draft boards and we all knew it in Louisiana where not one negro had ever served.

And they had an open clansman on the Board and they knew it but they didn't do anything about it until after this case when they got rid of it.

But what the confidence of the country would be shaken in these boards if we can't raise these issues and I say that we're required to do it.

We can't be foreclosed to do it.

The circuit opinion in this regard has got to be overruled.

I can't see how the system can survive knowing where the country knows that it is an illegal system, it operates in open violation of the Thirteenth and Fourteenth Amendment and what the Government says in the -- what does the Government say in defense of this?

They say, “Well, this is a -- this is like a malapportioned legislature.

This is -- this is really not too bad, you know.”

But actually, what they're saying and it would violate the separation of powers if we came in and try to reform the system, that's where we raise these questions.

They don't want these questions raised before this Court.

But what I'm saying what they're saying is that the executive can be just as unconstitutional as he wants and he can get away with it.

The Thirteenth and Fourteenth Amendment applies to everybody but the executive.

It doesn't apply to him.

And let's talk about the practical effect of a young black militant and the record shows that that's what the case was here.

This was a young man, who had been over the Mississippi, who had involved himself in the marches of Mississippi.

Had been arrested to Civil Rights Act, had gone down and tried to join the army at one point and they wouldn't take him because he'd been arrested to Civil Rights Act.

They didn't have the rest on this record but he's good enough to be drafted and he's good enough to be drafted by a Board with the president of the Ku Klux Klan only.

Now, what kind of consideration is he going to get from that kind of a board?

Nothing.

And if he has an appeal he wants to this Board, he has a reconsideration of his case to be made to that board and he did in this case.

What do you think that board is going to think about him?

You read the minutes in this record with how the Board treats policemen, firemen, people that come in there that work for union (Inaudible) that have people go in far.

He comes in with his mother.

He says, “For the first time in my life, I have a good job.

I work for the part of the agency, I make $275.00 a month.

I give $70.00 every two weeks to my mother and when -- this is what he needed to do.

This is what he was telling that happened.

Do you think the Board paid any attention to that?

Twice, even his employer went down and said, “Look, he's working with the poor in the city of New Orleans.”

It's more important, we think than to work in that lower ninth board with the black poor that it his family be down, no.

Justice Potter Stewart: Did the Board -- did the Board have a power to do anything at the time that he brought --

Mr. Benjamin E. Smith: Mr. Justice Stewart, 1625.2 says that Board has discretion to reopen after a notice of induction at issue.

We all know that.

The Court -- the Government would say, your powerless.

Well, that's not true.

If you look in the minutes of the Board that we put in our brief, they had a policeman coming in after induction and you know what it did?

Justice Potter Stewart: The ladies' induction?

Mr. Benjamin E. Smith: They asked, they wrote to the state director and asked him for him to do an induction delay.

Justice Potter Stewart: But they didn't re-classify.

Mr. Benjamin E. Smith: Didn't re-classify him but it's just a backhanded way of giving him a deferment.

But they have the power to reopen the case if they find circumstances over which this defendant or this --

Justice Potter Stewart: And no control.

Mr. Benjamin E. Smith: They still have no control.

Justice Potter Stewart: But that -- you're not alleging that, are you?

Mr. Benjamin E. Smith: Yes sir.

I say, in the brief --

Justice Potter Stewart: What circumstances over which he had no control?

Mr. Benjamin E. Smith: Well, as the way I put it and you know, take it, or not but I think that it's valid.

I say, I think, I put it on page 33.

I said, actually they reopened this case Mr. Justice Stewart.

I say, they reopened it when they took that first letter of April 27, that's the number three or something like that.

I say, that they did do this to show in all likelihood the Board made a perfectly reasonable assumption that a 20-year old youth who finds himself with the first real steady job in his life will be compelled by his conscience to help support his mother and six brothers and sisters who her mother had been deserted by his father many years before.

And I say that this was a change in circumstances to this young man and it was in effect because he had to support these children, that it was beyond his control.

Now, I see nothing in the reason in that interpretation of 1625.2 and certainly we have to recognize that he was impelled to a certain course of action and he was fulfilling his responsibilities to his family.

And I say that when that sort of thin happens and he goes right through every remedy.

We don't have a fallible problem, we don't have an (Inaudible) problem, we have as much right to exert Thirteenth and Fourteenth Amendment principles in this case as Wolff did, First Amendment in his case.

They are no less dear to his and no less important.

I would say --

Justice Potter Stewart: The -- this Ku Klux Klan leader was a member of the Board against -- what chairman of the Board?

Mr. Benjamin E. Smith: He was chairman of the Board.

Justice Potter Stewart: At the time your client was the classified 1-A, is that right?

Mr. Benjamin E. Smith: And he was also chairman when the man, when my client was doing up there and asking him for this exemption.

Justice Potter Stewart: He was.

Mr. Benjamin E. Smith: Yes sir.

Justice Potter Stewart: I saw some little difference, I saw some little difference in the opinion on then the briefs that he left by the time your --

Mr. Benjamin E. Smith: In my recollection, I may be wrong but I'm pretty sure that he was there.

I remember deleting that as a matter of fact.

And I think it was after this.

Justice Potter Stewart: Although you weren't allowed to show that way.

Did you make an offer of proof?

Mr. Benjamin E. Smith: I didn't make an offer of proof.

They cut me off in the question and I guess it showed them but I didn't but that was it.

I was prepared to show not only that he was a Ku Klux leader and everybody knew but then he lived in the office, effectively did he live.

I haven't raised that as our key argument but we all knew it.

Justice John M. Harlan: He lived in Rhode Island back then.

Mr. Benjamin E. Smith: Well, he didn't live around there.

He lived over in Bogalusa, over in Washington Parish.

That's where his clan activity were.

Justice Potter Stewart: Were the statute, as I understand that the members of the draft board have to be residents of the county, is that right?

Mr. Benjamin E. Smith: That's right.

He was out of the county.

Justice Potter Stewart: In Louisiana you have parishes in that counties but I suppose.

Mr. Benjamin E. Smith: Well, it's parish counties.

We use parishes instead of counties.

He maintain a residence in New Orleans Parish but also his main business where live was over there with those Ku Kluxes in Bogalusa but --

Justice Potter Stewart: But you're not --

I didn't get to that.

I was foreclosed.

I was go into action but I wouldn't.

Justice Potter Stewart: It didn't give the opportunity.

Now, the Government makes a whole lot of business about this failure to postpone or to appeal of 1A classification of January 16, 1966 because I just called effect.

Of course, attention to the fact that that's really irrelevant here because when they got classified in January 1-A from 2-S, he had nothing to appeal from.

He was properly classified 1-A at that time.

He was a young man who dropped out school.

He was not supporting anybody.

He was properly -- so there was no need to appeal.

So that can't be said to be a reason below.

It doesn't relate at all to the composition of this boy.

Then I have to point to the Court most respectfully, this man had no way of knowing who his chairman was, what his activities were.

He had no way of knowing whether that Board was segregated or whether it was -- had any negroes on or not.

He asked to go before the Board and at one time, he was tentatively promised a chance to go before that Board but they took it back, they wouldn't let him go, so he had never laid eyes in the Board.

But -- so I say again that how could he know.

We didn't know half of this case until we started discovering it in the criminal trial.

There was no way we could either get the information ahead of a criminal trial.

As appears those records in the middle of the trial that bring him in and you see how this Board operates.

They couldn't even remember whether they imposed on these cases or not?

I don't think they did.

But then, what I -- I think the whole thing is of appease.

It was a board and constitutionally made up.

It was a board because it is unconstitutional character.

It was unable to function as a system once says that it has to function in this case.

It was -- It's clear from the results that the Board achieved in this case that it was not the kind of Board that we ought to have sitting on these kind of cases.

That the system had somehow already been mismanaged and that the result is what you might expect, a perfectly valid hardship deferment by staff and a young man being sent to five years in jail.

That to me, is indicative of what happens when the constitutional structures are ignored in the composition of these Board.

No governor of the State of Louisiana and there was 25 years as ever recommend a negro to serve on any of these Boards and we all know it.

Judge Christenberry who tried this case he knew.

He knew the Board was all white, he said so and it would have been able to get more records because it could have gone further back in five years.

That's all the records they had available to him.

So I say to the Court, we can't waive something we don't know about and we can't waive something that is constitutional and we cant be held to be able to be put in jail by these kind of boards when we're raising constitutional issues and the court below has simply say, “Well, if you don't dot every eye and cross everything, and be very technical with the way you handle yourself before these boards, they you're going to go jail and you're going to go to jail even though that Board is.

No more competent that's in that Board to the army and it would beat us this court somewhere.

Just an incompetent board in kind and they expect him -- in the Government's brief they say, he's suppose to read all these regulations.

He's supposed to read the code of federal regulations which says, you know, certain things about the way he's suppose to handle his hardships.

For he's suppose to tell the board about it ten days after, he gets the jobs, he's suppose to tell them.

If you didn't tell them he waives.

But how the heck is he going to 1636?

Well, it's ten days with paycheck, ten days where he gives his money to his mother.

He comes, go -- he goes in there and tells the Board about it but what does he get?

He gets this kind of a board giving him a fast shuffle and that's what he got.

So, I respectfully submit to the Court that we can't be held the way of the constitutional issues.

This man has got to be given his day in court and he's going to be able to get up and tell that jury.

Look, this is -- or tell that judge effectively.

Look, this is a bad Board.

It's a really white board.

It's doesn't understand many premise.

Incompetent to sit on my case.

It's got a bad chairman and they can't deny it in appeal.

He can't waive those kinds of issues.

I don't think -- it's unconscionable for a system to say to this man, “You're going to jail and you're going to jail and you can't raise constitutional issues about it.”

He's going to go now and he's going to now for five years.

Justice Hugo L. Black: Well would it -- could the Board be removed by quo warranto proceeding?

Mr. Benjamin E. Smith: Sir?

Justice Hugo L. Black: Could the Board be removed by quo warranto proceeding?

They got him off that board after this case was over and I guess you could go back quo warranto and remove him but you see we didn't ignore the kind of board we were working with Mr. Justice Black until we got right in the middle of the trial and there's no way for these registrants.

This responsibility of the system to police these boards, not the responsibility of the registrants but we did more good in expose of these kind of thing and I think in this case and the whole system had done for years down there.

They just didn't care.

But you know --

Justice Hugo L. Black: A whole illegal board, would all the people who had been granted in the army be illegally in the army?

Mr. Benjamin E. Smith: Well, I think if I were a black man that got drafted by this board number 42, I'd go see a lawyer.

I think you ought to.

If he's got something that he really wanted to raise to that board and try to, he wouldn't have got a fair shake.

And he didn't have to show that he didn't get a fair shake.

I think you just show that that board was what it was.

And --

Justice Hugo L. Black: How was he appointed?

Mr. Benjamin E. Smith: They are suggested to the president by the governor of the state.

Justice Hugo L. Black: By the president.

Mr. Benjamin E. Smith: And they're appointed by the president of the United States and I think they serve a term or they serve a displeasure, I'm not only ever sure but they just weren't any negroes that had any political pool to get on any of these votes.

That's exactly what was happening.

They were playing local politics.

Justice John M. Harlan: What is the state of the record now on that?

Your intent to show that the composition was void.

Mr. Benjamin E. Smith: Was -- oh yes, here's -- the state of the record is this.

At the time of the hearing on the motion to quash the indictment Mr. Justice Harlan, I started asking questions about were there any blacks ever served on the board.

I was cut off by objections and then I got the U.S. Attorney who was with me there and trying the case to admit an open court before Justice Christenberry that there had been no negroes that had serve on that board for the last five years as far as he knew and Judge Christenberry then took judicial notice of the fact that all the members of the board were white.

And then he denied my motion to quash the bill of indictment and that's the state of the record on that issue.

Justice John M. Harlan: What about the chairman of the board being close to the matter.

Mr. Benjamin E. Smith: On the trial of the case, after August 30, 1966, in the course of interrogating the then chairman of the board, Mr. Lizano, I said asking if he was the chairman and he said yes.

And I said, “Did you replace Mr. Helm?”

He said yes he did.

And I said, “Was this the same Mr. Helm that had been accused of being a Ku Klux or being accused of Ku Klux Klan activities and at that point, I got my objections on the Government and Judge Christenberry upheld the objection.

I then went on to do his as best as I could under circumstances and established that Mr. Helm was a chairman at the time of the original classification and I think I don't whether there are established, 20 left the Board or not.

On page 43 of the record, you'll find what I just described Mr. Justice Harlan.

I said, as a matter of fact, it wasn't even the same Mr. Helm that had been accused of being of a member of the Ku Klux Klan.

I objected the question, if the Court please to have the relevancy objection sustained.

Mr. Helm was a member of the board when Mr. Duvernay was originally classified.

I think he was.

Right, according to the record it showed it was.

That's right.

And I think some of the records that relates to some of the minutes of the Board that we put in evidence here show that Helm was chairman on some other instances but I'm not sure they'll have to show it.

Well, I think that's all have to say.

If the Court has no further questions, I'll reserve the rest of my time for rebuttal Mr. Chief Justice.

Chief Justice Earl Warren: You may.

Mr. Martin.

Argument of John S. Martin

Mr. John S. Martin: Mr. Chief Justice and may it please the Court.

I find myself in somewhat of a wondering the way to approach the argument in this case because it seems to me that petitioner has ignored what is really crucial to the case that is before this Court and that is the vital role that is played in the Selective Service System by the provision embodied in the regulations that once a notice of induction is sent to a registrant, the local board is precluded from reviewing that registrant's classification unless it finds that there has been a change in circumstances since the time that notice was mailed?

Justice Hugo L. Black: Then what?

Mr. John S. Martin: Unless there has been a change in the registrant's circumstance.

To review briefly the facts here, a petitioner who had been a student, dropped out of school in December of 1965.

On January 19th, 1966, he was reclassified 1-A.

On January 28th, 1966, he was ordered to report of physical examination.

On February 23rd, he did not appear on that date because he says that he overslept.

The physical was rescheduled for a date of March 14th.

He appeared on that date and was found physically accepted -- acceptable for service and was then on April 13th, 1966 ordered to report for induction on May 20th.

Our petitioner contends and here that as of January 19th, 1966, the date he was classified 1-A, there was no other classification in which he could be put.

He says that he wasn't working, the record is not clear on that.

He started to work some time in January according to the record but the exact date was never clarified.

The petitioner's position is that that classification was correct.

I would clarify one point here that that is the only time as far as we know that anything in the record that Mr. Helm was the man that they claim as the clansman that had any connection with the case.

All the minutes of Board meetings after that date indicate that he was not present and it had been our assumption that he had gone off the Board in some intervening time.

But in any event, petitioner says that January classification is correct.

So therefore, the time the Board issued its notice to report for induction April 13th and all the information before it.

The petitioner was rightfully classified 1-A and he was therefore physically -- found physically acceptable and he was therefore a proper person to be ordered to report for induction.

And he was so ordered.

All of the information which the petitioner now contends show that he was entitled to a deferment here because of the hardship that would be involved to his mother and brothers and sisters by his induction or because of his occupation.

None of the these information was brought to the Board's attention prior to the time that notice to report for induction was sent although petitioner can see that at the trial and I think concedes here that these facts did exist prior to the time.

The notice to report for induction was sent.

So that it is clear, we have here a situation which totally fits with any exact provision of 1625.2 whether it has not been the change in circumstances of the registrant, subsequent to the mailing of the notice to report for induction and therefore the Board is precluded by the regulations from reopening the classification.

It is the Government's contention here that petitioner's failure to bring to the Court's attention the fact relating to his hardship claim or his claim to an occupational deferment at a time when the Board could have conceded the merits of those claims was in fact a failure to exhaust his administrative remedies which therefore precluded the courts from passing on the validity of his classification at the time he was ordered to report for induction and the time he failed to submit to induction.

Chief Justice Earl Warren: Mr. Martin, may I ask, when was in relation to the time between the date that he was ordered for induction and the date that he was to be inducted does he allege that his condition changed?

Mr. John S. Martin: Mr. Chief Justice, he alleges no change.

He concedes that there was no change after he received his notice to report for induction.

Chief Justice Earl Warren: When does -- when he does the claim?

Mr. John S. Martin: He said that the change occurred between January 19th, 1966, the day he was classified 1-A and April 13th, 1966, the day the Board issued its order to report for induction but at no time during that period when this change occurred according to petitioner did petitioner go to the board and said there has been a change in my circumstances that classification which you gave me 1-A was right at the time but now there are other factors which I think show that I'm entitled to a either hardship or occupational deferment.

Had he done so, the Board under the regulations could have considered the facts and if they found that the facts if true would warrant the classification which he was suggesting he's entitled to.

If they said that on the facts you present, if they're true, there would be a hardship, we could give you that classification.

Then the Board could have reopened his classification considered the facts, made his investigation and I think it's important here to point out that if the Board was considering that classification, they would have it available to them, several things that he could have done, not only they could they examine the petitioner and his mother but they could have consulted local welfare agencies to determine --

Justice Byron R. White: Now, this is all before people of 13, I gather, as you now confessed yourself.

Mr. John S. Martin: That's right.

What I'm saying that's right.

Justice William J. Brennan: Is it your position about the statute that if these are the changed circumstances on which petitioner relies, they're not available to or on April 13th because its only circumstances, changes in circumstances which occurred after that date over which he had no control of which would permit the Board to do anything at all about it.

Mr. John S. Martin: That is correct.

That is our position.

That's what the regulation has embodied.

And what I'm saying here simply is that if before the time of the notice to report for induction.

He informed the Board for these changes as they may have.

They could have taken some action, they could have investigated the claim, they could have go to welfare agencies in the area to give some indication of what support there would be for the --

Justice William J. Brennan: Well, I gather your point is that at that juncture, the Board would have had the authority of power jurisdiction which he will do something about.

Mr. John S. Martin: That's correct.

Justice William J. Brennan: But after April 13, they had no authority power or whatever to do anything as to circumstances which develop before.

Mr. John S. Martin: That is correct Mr. Justice and that is the basic position that we're urging that once that notice to report for induction came.

1-A classification was proper and there was no basis on which it could have been challenged.

That therefore, the court below was right.

There had been a failure to exhaust these administrative remedies by not bringing to the local board's attention in its seizable -- at a seizeable time, those factors which he claimed authorize a change in its classification.

I think that this regulation is an important vital that's within the framework of the Selective Service System.

I think it embodies a principle that the necessity which is self-evident that there has to come a time in the Selective Service System when those who were charged with meeting draft boarders on a month-to-month basis, can no with assurance that a classification is final and that a person classified at 1-A at that particular time will in fact be available to report for induction on the day schedule that he's mailed the notice to report for induction.

It seems evident if the local board has to have a 100 men to report to induction on May 20th.

They have to go through all these, find those people classified 1-A, look at their file and make sure that that classification is proper and then send to those 100 people a notice to report for induction.

If after that notice, to report for induction is sent, those 100 people could each come in and say now, “Wait a minute, there are other claims I want to make as to my classification.

I want a deferment for hardship because my occupation.”

Then the Board will have no way of guaranteeing that it wouldn't meet its commitment to the military service of this country to provide 100 men to be inducted and I think this is why this regulation is vital and it is why I think it is a reasonable regulation within the Selective Service System.

I think it is also interesting to note that this cut-off date is not only of the time a notice to report for induction is sent.

It's one that is not only embodied in the regulations but it's one that Congress itself recognized in enacting the statute.

It provided that it Section 6(a) of the Act, that any person who prior to the issuance of orders for him to report for induction, enlists or accepts appointment in the ready reserve shall be deferred.

Congress recognized with respect to reservist also.

Yes, there is an interest in deferring reservist but there has to come a time when the classification is final and people can be bordered up and expected to report and they as the -- Congress and the statute as in the regulations set that time as when the notice to report for induction is mailed to the registrant.

So I think that if that registrant -- if that regulation is as we submit a constitutional one, authorized by the statute, then the local board at the time Mr. Duvernay came to present his claims was precluded from acting on those claims and therefore he cannot now contend that the action of the board in denying those claims was improper.

It was in fact proper.

It had a basis in fact.

His classification was based on the facts as of the time the notice to report for induction was sent to him and the Board acting pursuant to the regulation, could do nothing else but maintain that classification.

Now --

Chief Justice Earl Warren: What was the last day upon which he could make an application for a reclassification?

Mr. John S. Martin: I think that he'd come in anytime prior to the time he was noted, he was sent his notice to report for induction, the Board could have considered the claim.

Chief Justice Earl Warren: That was January 19th?

Mr. John S. Martin: He was set the notice to report for induction April 13th,.

He was classified 1-A on January 19th.

Chief Justice Earl Warren: Yes.

Mr. John S. Martin: He was sent the notice to report on April 13.

I think anywhere, anytime within those two dates had he commend the Board would have had power to consider his claim.

I think it should be pointed out that the regulations provide and in fact it appears on the back of the classification card which the registrant has sent.

Every registrant when he's classified receives a time, this is the time the petitioner was classified.

He received a card like this which is the classifications that we got here.

And right on the back of the classification is printed the notice that you are required to have this notice on your possession and the card says, I'm quoting, “the law requires you to notify your local board in writing of every change in your address, physical condition, occupational, marital, family dependency, and military status and of any other fact which might change your classification within ten days after it occurs.”

So that petitioner was under an obligation under the Selective Service Regulations to report to his local board these changes which he now claims made him eligible for deferment.

Justice Hugo L. Black: May I ask you that specifically answers this contention by this question.

What he says is that the Board was not a valid board.

It wasn't a valid board as I understand it when it classified him, it wasn't a valid board there and I'm not indicating any belief about whether he was right but he can raise it this way but if he can raise it at all, what difference does it make?

It is invalid board and the regulation, he must present something to it in order to raise it at a particular time.

How does that escape the question he has presented too?

Mr. John S. Martin: Well, I think Mr. Justice, it operates in this way.

His basic contention is that I was improperly classified.

He says, I was improperly classified because of -- because of the racial composition of the Board.

What we're saying first is that let us assume that he is correct, that he was improperly classified, that the Board was, I'm -- I strike improperly classified.

Let us assume that he's right.

Justice Hugo L. Black: Well, his contention is the Board was improperly classified by an illegal board and therefore he hadn't been classified at all and there's no basis for ordering him to present himself.

Mr. John S. Martin: What I'm saying response there's two things.

One that, if we accepted the Board was improperly constituted that is the negroes were excluded for the purpose of argument.

Still, there is patent on this record, the fact that there was no improper classification because he concedes that he was properly classified 1-A.

He concedes the fact getting rise to his claim of deferment occurred prior to the time that he was ordered to report for induction and under the regulations, once he was ordered to report for induction, there was nothing the board could do,

Justice Hugo L. Black: But he says that he was ordered by a board that was no board because he treats it.

Since he said there has been negroes on it at all as an invalid board and one which can't enter it all.

Mr. John S. Martin: Well, I don't think that that necessarily would follow.

I think that for example a doubt that if a white man were classified by this board, the Court --

Justice Hugo L. Black: That might be true but don't you have to get to his issues, how can we decide the case without getting to his issues.

Mr. John S. Martin: Well, I think there is one way you could do -- one way you can do it is to look to see is there any possibility that the racial composition of this Board could have affected his classification and we submit that on the facts presented by the record, there was no way.

But he wasn't allowed to present his proof.

Well, he was not.

Justice Hugo L. Black: How does he raise his constitutional question on all the premises as you're suggesting to the Court.

How does he raise his constitutional ground?

Mr. John S. Martin: Well, he was allowed.

There was no -- the only area of proof on which he was at all excluded was his offered proof that the particular member of the Board was a member of the clan and that was cut off by objection which was sustained.

As I say, that was the only think in the record.

The record is clear.

It was stated in various meetings.

Justice Byron R. White: Well then, (Inaudible) suppose, I would classify, no board was called, is that the claim of the Government.

Aren't these should have been first made before the appeal board or the presidential board in any event is made to that, as I guess it did.

They don't have to go to the appeal board.

Mr. John S. Martin: That's right.

Justice Byron R. White: You stated to do that margins is having those defense --

Mr. John S. Martin: I think we would contend that by failing to proceed through the appeal --

Justice Byron R. White: like that, because there is no board, no power board to --

Mr. John S. Martin: That's right because the appeal -- basically which claimed here somehow that my classification is wrong and that he'd be taken the case to a higher board and then that board could by a change of classification.

Justice Byron R. White: Well, you say, you didn't claim like that --

Mr. John S. Martin: That's correct, that he could go a step higher if he properly pursued his remedies.

Number two, that if he made that claim, being a constitutional claim, the board there had no power to pass on such qualifications.

Mr. John S. Martin: That's correct but I think this brings into play --

Justice Byron R. White: Does it not would have been true even if his initial classification.

They didn't have any power in the first place to classify him 1-A and certainly he could've appealed his 1-A classification on January 13th on the grounds that I'm misclassified.

Mr. John S. Martin: That's true.

Justice Byron R. White: By racially discriminatory board.

Chief Justice Earl Warren: We'll recess now.

Mr. John S. Martin: Courts should not have considered that claim on the merits.

And I think our answers to that are two-fold.

One, I think what we're saying in the first instance is that this was the board that carry not looking to the racial composition.

It was a duly appointed board, appointed according to the procedure set forth in the statute and regulation.

It was acted and I think it will be our submission on this point that in order for the action of that board to be held invalid because of possible racial discrimination, there would have to be some indication at least a suggestion that the Board's action could have been improperly motivated.

And that that does not appear in this record.

It is conceded that the classification was proper and it has conceded the facts weren't brought to the Board's attention when they should have been under the regulation nothing more could have been done by the local board after it sent out the notice to report for induction.

So that in effect, it is clear on this record that racial consideration could have had no effect upon this classification and that is the point that --

Justice John M. Harlan: Well, that is Mr. Martin that they were (Inaudible).

Mr. John S. Martin: No I don't think -- that is not true.

The only thing at all in this record whether (Inaudible) was in showing that the member of the Board and the only question is was at the time petitioner was classified 1-A was in the head of the Board a member of the Ku Klux Klan objection sustained.

That is the only question asked in which there was any cutting off.

So all you have is the cutting off of the fact that the time this man was classified 1-A.

A classification which he concedes and argues in fact is the only one he could have obtain that was a member on the member who was a member of the Ku Klux Klan.

So I think it's apparent that even if that's true, that petitioner's classification at that time could not have been affected by racial considerations because he concedes there was no other classification in which he could have been put.

Justice William J. Brennan: Well, Mr. Martin you said before us that many event, that was the claim that was taken in the first instance to appeal board and then the national board.

Now, how do you answer Mr. Smith's suggestion, how could we at that tine, we didn't know the facts, we didn't discover the facts until at the time of the criminal trial.

How do you -- how do you answer that?

Mr. John S. Martin: Well, I think the basic answer to that claim is what I am suggesting is there has to be for this any aspect of racial discrimination to come into play, some basis for suggesting that the classification could have been affected by the racial composition of the board.

Justice William J. Brennan: I shouldn't it need much to prove that if you had a chairman who was a member of the Ku Klux Klan would you?

Mr. John S. Martin: Well, I think you would need to show that it affected this particular registrant.

I think it would be clear to Mr. Justice Brennan for example that if a white man had appeared before this Court, was denied a deferment.

Justice William J. Brennan: Well, what's evident as I understand it that the police officers, white police officers, after they got notices of induction had no difficulty getting there and getting postponements which were tantamount to as I understand it, is that right?

Mr. John S. Martin: Well, there was one instance in which the Board in the minutes which reflected the fact that the Board, a police department made a request to the Board that it defer for occupational grounds a man who had been ordered to report for induction.

What the Board did in that case, was to say that they could not reopen but they sent a letter to the state director who does have the power the classification anytime, asking that Helm, addressing to Helm that he might want to exercise his authority to open anytime the classification so this could be considered.

That is what was done, it would deny itself to reopen it.

Chief Justice Earl Warren: Why couldn't they have done that for this man?

Mr. John S. Martin: Well, they could have done that with this man, this man could have done it himself though.

I think it really doesn't make a great deal of difference.

There's no --

Chief Justice Earl Warren: Well, how would you expect a normal colored man of a very little education to know all these speculations and know all of the composition of the boards and know that the governor that state had never appointed a negro to any of these hundreds and hundreds of member that are there all the time.

How would you expect him to know that before he got into a trial and had the advice of counsel?

Mr. John S. Martin: Well, I think there are couple of things to be said in answer to that.

I think the first thing that has to be said is really is the base of his whole claim.

There just is no record supporting the statements that the counsels made that they were for all times discrimination against negroes throughout the state.

Chief Justice Earl Warren: Well, you know that's true, don't you?

Mr. John S. Martin: I don't.

It may be, I just don't -- I don't know the facts.

Chief Justice Earl Warren: You haven't heard any of these cases to find out if those things were true.

Mr. John S. Martin: Well, all I know Mr. Chief --

Chief Justice Earl Warren: Is that a fact.

Is that a fact?

You were never interested to find out whether those things were true even though it was argued in this case?

Mr. John S. Martin: I did not find out exactly what the racial composition of --

Chief Justice Earl Warren: I didn't say exactly but.

Mr. John S. Martin: But whether the -- yeah, what the composition was, no we did not.

Chief Justice Earl Warren: Common knowledge if that's true, isn't it?

Mr. John S. Martin: Well, I'm sure there's common knowledge that there have been you know, discrimination in south that is being practiced by Government officials and practiced by --

Justice Hugo L. Black: What about in the north?

Mr. John S. Martin: I think, you know, I think that there has been throughout and it's unfortunate that that is so by do thinking in the sense the Selective Service System has these some extent an ability to deal with question.

It does seem to me in one sense and this I think leads to something else.

He said how did anybody know that when the Board -- you know people on the board -- well, you take your assumption Mr. Chief Justice that this is common knowledge that white government officials do not recommend for appointment in the south.

Chief Justice Earl Warren: But what can a -- what can a poor 18-year old negro of limited education, how can you expect him to do something about this until he's really in trouble, until they order him inducted?

Mr. John S. Martin: I think what you can say is that, one, he's somehow to be affected by this, that he's has to be misclassified in some way.

It seems to me, a negro knew he's no different from a white man of the situation that if he goes to a particular board and he's properly classified.

Chief Justice Earl Warren: There is if a person is negro on an old state on any board.

Mr. John S. Martin: Well, I think there are differences, yes.

A negro will be greatly affected if he has a valid claim for deferment which he presents at a proper time and the board doesn't grant him his deferment because they are racially motivated but I think that there has to be and this is what I was saying that a negro was no different from the white man in the situation who is properly classified, there's no reason to change his classification and is then ordered to report for induction, that both the white man, the negro in the same situation have not been prejudiced.

There's been no racial discrimination enacted against them.

Chief Justice Earl Warren: How about the police -- how about the policemen you told us about?

He got a remedy from going to the board, the white might have done the same thing what this poor fellow who did have a mother and 6 children to help support.

Mr. John S. Martin: Well, I think that Mr. Chief Justice, there at least in the record some facts that indicate here why perhaps the Board did not feel it appropriate to take the steps with regard to this registrant.

That is -- although his claim was for hardship, that was not the first claim he made after he came in.

He made a claim which seems to me to refute his hardship claim when he first -- after he received the notice to report for induction.

He came in two days later with a notice to report for induction in his hand and he said, I want a student deferment.

I'm going back to school in the fourth.

I just dropped out but I'm going back to school.

Now, I think this indicates that his intention that time was not to continue support his mother and the children.

Chief Justice Earl Warren: Now is it your -- is it your position then that they didn't do anything for him because it wasn't equitable or because they didn't have any power?

Which is one of the two?

Mr. John S. Martin: Well, I think basically, they don't have under the regulations -- they don't have the power.

Only, what they could do is what he could do for himself.

They could ask the state director to reopen his classification.

I think that that is something that he could have done for himself.

That he was improperly classified.

Justice John M. Harlan: But that put another question to be answered.

Earlier Mr. Smith made a formal (Inaudible).

Mr. John S. Martin: I think the Government's position would have been Mr. Justice that unless there was some reason to find a possibility of prejudice.

Let us assume for example a negro registrant who comes in and says he's improperly classified 1-A.

He should clearly be entitled let us say to a student deferment.

I think there, you may say, alright, you can't hold it against him that he didn't know that negroes were excluded from his board.

But I think you still have to go to step further and say, but doesn't he in any event eventhough he doesn't know why he was improperly classified does and if he is claiming and the claim is still basically an improper classification have to resort to the machinery which the selective service statute and regulation sets up to correct improper classifications.

He can take that to an appeal board and if they are unsuccessful -- if he's unsuccessful there, he can either if it's a split decision taken to the presidential appeal board, or either the state director or national director can take that decision to the presidential appeal board.

I think this is something that is important also to consider that let us assume for a minute a man who was improperly classified who knows that a negro -- who knows that a negro has been excluded from his board, what can he do?

Counsel said and we agree that perhaps the constitutional question could not be decided by the appeal board but what could be done is the classification cold be decided and if the appellant in his statement said, “I was classified 1-A when I should have been 2-S and the reason I was classified was because the local board was prejudiced against me because I was a negro.”

That fact have as to the reason for misclassification can be brought to the appeal board's attention.

So that they will focus on the classification and realize that there is this possibility that they have to carefully scrutinize the case to determine whether or not 1-A is the proper classification for this registrant.

So I think that there are in the system --

Justice Potter Stewart: That's a de novo proceeding, is it?

Mr. John S. Martin: Yes, that is a de novo proceeding.

Justice Potter Stewart: So you have more -- you mean, in such proceedings, they'll take all kinds of evidence?

Mr. John S. Martin: Well, they can -- no, I'm sorry.

They are bound by the record over we can make a statement that accompanies the record and that is important, the facts that they can consider.

But I certainly think that it is -- and basically all they have to find is the prima facie case has been made out before the local board.

If he alleges that the reason he was denied is application was that the board were just prejudiced against him, if this is something that he could bring to the appeal boards to the decision and they can take into their mind in determining whether the classification is proper.

I think that is basically what we're talking about.

Is this man's classification proper at the time he's ordered to report for induction?

And if it's so, it seems to me, it's no different than a man who was convicted by a court in the south in which over a period of years no negroes have been appointed for the bench.

Certainly if there's anything to indicate.

Justice Hugo L. Black: Is that our -- let's assume that where everything he say is true, that there has been none, not one man, what is the proper remedy to raise that question?

Can you do it in a criminal case or do you have to treat that board as wholly void?

Mr. John S. Martin: I think --

Justice Hugo L. Black: It's just a basic question.

Mr. John S. Martin: I think that you have to look at the Board as any other body appointed by the executive, whether it be the Court or the administrative agency.

I think it have --

Justice Hugo L. Black: In other words you think it's the same as the -- as though they have been elected that way?

Mr. John S. Martin: Well, I think --

Justice Hugo L. Black: Or appointed, legally appointed, legally appointed or elected except to resolve his new (Inaudible) to a point in a colloquy, what would you do?

Mr. John S. Martin: I think that you still in that type of situation that it is different from the jury which by Constitution is required to represent of course a section of the community.

I think that it is a different situation in all of those cases, you have to look very carefully to determine.

Did this man suffer because the person or the body that passed on his application if it's a case in Court where the judge has acted to racial motives.

Justice Hugo L. Black: Do you think you would have to treat him as a de facto also?

You think it could be raised by this method?

Mr. John S. Martin: Well, I think that the Court mean that the Board is a de facto order, is a de facto is operating and I think what has to be shown in these circumstances.

Justice Hugo L. Black: Well, suppose it is shown.

Let's assume that it's shown.

Mr. John S. Martin: No, I think what --

Justice Hugo L. Black: What I'm saying that is does the Government admit that this question can be raised by taxing the Board out right and saying, “we'll not consider any of their action or should that be raised in some other fashion.

Mr. John S. Martin: What I'm suggesting is that it can only be raised upon some showing that there was in fact a defect in the classification.

Justice Hugo L. Black: Well, in other words, you say that -- you say that if there's a defect in the classification, it's wrong, that it can be raised.

Mr. John S. Martin: If there's a defect in the classification and the question is to the propriety of that classification was raised properly through the Selective Service System.

Justice Hugo L. Black: And why that couldn't be done in reference to all officers appointed by the president?

Mr. John S. Martin: I think that's true.

I think that the same the booking into the Constitution, the acts of the Court, that are pointed.

I don't think you look to see whether in determining a racial discrimination problem, you don't look to see whether or not the president has ever pointed a negro to a particular court.

You have to look and see had the judge -- did the judge in this Court act --

Justice Hugo L. Black: Yeah and it has made some kind of an legal error, the Court can revise it.

Mr. John S. Martin: Absolutely.

Justice Hugo L. Black: But you argue -- I'm not saying either that we got -- that is to be raised in connection whoever appointee by the president.

Mr. John S. Martin: Absolutely not.

It's exactly what I'm saying is that you have to treat the people that's invalidly there which you do try and determine as to whether or not they had acted out of racial motives and where there's no evidence as to why they acted to that reason, that the classification is valid.

And also that when there is an improper classification, that classification has to be brought to the -- through this system where it can also be corrected before it can be brought into Court.

Chief Justice Earl Warren: Mr. Smith.

Rebuttal of Benjamin E. Smith

Mr. Benjamin E. Smith: I only have a few thing I want to talk about in connection with what has been said Mr. Chief Justice.

I think that ill becomes the Government to get up here and say that there has been no prejudice in this case and that there has to be shown to be prejudice.

We know very well from the jury cases that have come before this Court and others that if we show a patent in practice of exclusion of black people from juries, we'd all have to show prejudice.

It's right -- built into the system right there, that it's there.

The jury cases don't make you go out and show that you would have gotten a better break from a properly constituted jury.

We don't have to show that in this case but it's all over the record that we did get that kind of treatment.

And I'll tell you why.

This man was not only classified by that Board but when he tried to get his hardship deferment, it was still the same white board that said no.

Look at the record, the way that Court writes the letters, “No, no.

We can't help you.”

The employer goes down, “No, we can't help you.”

I know what was happening.

That white board was sitting there as white, some were white men.

They didn't know this young black militant,(Inaudible) problems.

They didn't know anything about the kind of life he lived.

They didn't know anything about what his family life had been.

They didn't know -- they didn't give him any benefit of having -- of not knowing how to read the federal register.

And they said no.

But the cops come in, the police come in and I know wrong.

He covers in there, it's on this page in my brief, 39 and this is what they say about Roth, the policeman, “Request for deferment filed by the Department of Police in behalf of William T. Roth” and they give his number “scheduled for induction.”

He was under a notice of induction just like this man is.

Presently under attendance of the police academy, it's at footnote on page 39 was acting on by the Board.

That means they're acting only after 1625.2.

The induction had gone out.

“The Board concurred in granting the deferment, thereby requesting the state director to cancel registrant's induction."

Justice William J. Brennan: You mean when you read that as an official action of the Board not on a finding that something that happened after the notice of induction went out and that's something being something beyond the control of the registrant but they just acted on the request and deferred him themselves, asking the state director to cancel the induction but the action you're telling is, was the action of the Board, is that it?

Mr. Benjamin E. Smith: Yes sir.

It says, here the Board concurred in granting the deferment.

Justice Potter Stewart: This might what you can't tell because it's ambiguous but this might well have been a change for reasons beyond his control, i.e., he was called to attend the police academy.

Mr. Benjamin E. Smith: He volunteered.

I know the man, he volunteered to attend the academy.

Justice Potter Stewart: Well, I don't know the man, we just can't tell from this footnote.

Mr. Benjamin E. Smith: I can't tell from here that he is a policeman in training.

And the police department neither do.

So they went in and the white men in this Board, knew what the problems of the police were Mr. Justice Stewart and that was when they did it.

Justice Byron R. White: The Board might have been exceeding his powers in that case, do it, under the regulation?

Mr. Benjamin E. Smith: It might have been.

It might have been.

But at the same time they say 1625.2 is so important a regulation this Government has -- I mean this Court has to preserve.

Well, if it's so important, why don't they tell these registrants about it?

Why don't they write them a book and tell them, “Look, if you don't go in there in ten days, you're forever foreclosed.”

This guy didn't know it that when he went to work and start supporting those kids, then he had to tell him that within ten days or he never would be able to do it again.

It wasn't written in the sky and the little card that he didn't even looked at and it didn't really say what happens if you don't do that after ten days.

And the fact is that the kind of Board he had was just exactly the kind of prejudice that we're talking about.

This is the prejudice.

They didn't have a standard --

Justice Potter Stewart: Members of the local Selective Service Boards are in all cases appointed by the President of the United States on the advice of the governor on respective states.

Mr. Benjamin E. Smith: Yes sir.

Justice Potter Stewart: No other way that they become members?

Mr. Benjamin E. Smith: Not to my knowledge Mr. Justice Stewart.

Justice Potter Stewart: And is this also true to the appeals board, the state appeals board?

Mr. Benjamin E. Smith: Yes, I think that's true too.

Justice Potter Stewart: Recommended by the governor, appointed by the president of the United States.

Mr. Benjamin E. Smith: Yes.

And as you go on into this question he raised Mr. Justice White about whether you could raise this question on appeal.

It's answered by what I think been said by the justice on the Court.

He didn't know and I wouldn't know really if he had taken an appeal to raise this question of composition of the Board Justice Stewart.

He didn't know anything about that.

He couldn't be expected to know anything about that.

It would have been a futile business anyway because that appeals board is not going to knock out its own -- it's a constitutional defense.

It has to be raised in the court of laws even though there might be lawyers on the Board.

It doesn't make any difference.

Justice Byron R. White: You mean that in all -- you mean no constitutional questions were ever raised in the administrative proceedings and passed upon.

Mr. Benjamin E. Smith: Well, I guess they are.

I don't know but I would think that it's most appropriate --

Justice Byron R. White: You know they are, don't you?

Mr. Benjamin E. Smith: Yes they are but mainly what the boards are here for is to use their expertise in classification and at the same time, I think it's going to be very difficult and sort of an unrealistic to simply say to the Board, “Look, you're badly constituted.